120 Cal. 614 | Cal. | 1898
This is an action to foreclose a mortgage on certain described land, executed to plaintiff by David Heron, now deceased, to secure his promissory note for nine thousand dollars. He died before the commencement of the action, but before his death he conveyed the mortgaged premises to his wife, Sophia Heron, now his widow, who is a defendant in the action. There was no administration of the estate of David Heron, but it is averred that demand was made, on Sophia Heron for payment of the note, and the case seems to have been tried on botli sides as if she stood in the place of and represented the deceased. Certain other persons who are averred to be heirs of the deceased are also made defendants, as claiming some interest in the mortgaged premises. During the pendency of the action the premises were in the possession of one Morris, to whom they had been leased by Sophia Heron for the -purpose of raising a crop of wheat thereon during the season ending with the summer of 1896, and he was to give her one-third of the grain raised. The mortgage was upon the land only, no mention being made of the rents, profits, issues, or crops.
The action was commenced on August 10, 1895, at which time it may be presumed that the wheat for the crop of 1896 had not been sowed; on February 1, 1896, an amended complaint was filed, in which there were averments of the depreciation of the mortgaged premises, with intent to show that they were probably insufficient to discharge the mortgage debt within the meaning of subdivision 2 of section 564 of the Code of Civil Procedure, and a prayer for the appointment of a receiver under said section of the code. On that day—February 1, 1896 —the court appointed P. C. Fenner receiver, “to take possession of the premises and receive the rente, income, and profits thereof
The tenant, Morris, remained in possession, and nothing further was done in the matter by the receiver or the court until after the tenant had harvested the crop. Thereafter, on the first day of August, 1896, Morris delivered at Merritt’s warehouse seven hundred and two sacks of wheat, being one-third of the crop. The sacks were marked, “A. W. Morris, rent,” and he took a warehouse receipt therefor, dated on that day. He kept the receipt until September 1st, when he asked permission of the court to turn it over to the receiver and to be relieved of further responsibility in the premises; and on said day the court ordered that he deliver said receipt to the receiver and be “released from all responsibility and liability thereon.” Afterward, a motion was made for an order requiring the receiver to deliver said warehouse receipt to Linforth, assignee of Sophia Heron as aforesaid. The findings recite that this motion was heard and taken under advisement, “to be disposed of when the final decree should be entered herein”; and it is found that the receiver should deliver the receipt to Linforth. In the eighth paragraph of the final judgment it is decreed that the receiver “forthwith deliver to Walter H. Linforth that certain warehouse receipt,” etc., describing the receipt hereinbefore mentioned; and from this part of the judgment tbe plaintiff appeals. It seems that there was also a separate order, distinct from the final decree, directing the re
The question presented is, whether, upon the facts above stated, that part of the judgment of the trial court which decrees that the wheat in question should go to the assignee of Sophia Heron, and not to appellant, should be reversed; and we see no suffi-. cient grounds for a reversal.
It is true that in this case there is no appeal from the order appointing the receiver; but the mere appointment of a receiver is not a determination of what the court shall order him to do. Except where the moving party has some absolute right to the property sought to be controlled the appointment of a receiver rests in the discretion of the court; and in a case where the court was asked to exercise the power of compelling a person io pay certain rents to a receiver, it was held that: “Whether it should exercise the power was just as much in its discretion as the appointment of a receiver.” (Rider v. Bagley, 84 N. Y. 465.)
It is well settled that in California, and in other jurisdictions where there are statutes similar to ours on the subject of mortgages, a mortgagee of land has, by virtue of his mortgage alone, no right to the possession of the land mortgaged or to its rents and profits, and no lien upon or right to the crops not growing thereon at the time title passes after foreclosure and sale. As was said in Simpson v. Ferguson, 112 Cal. 184, 53 Am. St. Rep. 201: “Such lien, so far as the growing crops are concerned, is limited in its effect to the crops growing upon and unsevered from the land at the time of foreclosure. It docs not vest the mortgagee with a right to the crops intermediate the giving of the mortgage and the foreclosure thereof. Until the latter event, where as in this state the mortgage creates no estate in the mortgagee, but confers only a lien upon the property, the mortgagor is entitled to such crops with the same absolute right and dominion over them as if the mortgage did not exist.” In that case the court quotes section 670 of Jones on Mortgages, in which it is said that: “Even if the rents and profits of the mortgaged
The claim of the appellant must rest, therefore, entirely upon the appointment of a receiver under subdivision 2 of section 564 of the Code of Civil Procedure. The chapter in which that section occurs does not deal with the specific subject of mortgages, but with the general subject of “Receivers.” It provides, generally, that a receiver “may be appointed” in a variety of enumerated cases; and among others, in the case of a foreclosure of a mortgage when the mortgaged property is in danger of being lost or injured or is probably insufficient to discharge the mortgage debt. It is argued with great force that the section must be construed-in connection with the provisions of the codes on the subject of mortgages; that, as thus construed, it means that receivers may be appointed in actions to foreclose mortgages only in proper cases—that is, in cases where by the mortgage contract the mortgagee is given a lien upon the specific
There is nothing important in the fact that the assignee was an attorney of Mrs. Heron; she had the right to dispose of the property that was not within the mortgage hen to whomsoever and in whatever manner she pleased.
The judgment and order appealed from are affirmed.
Temple, J., and Henshaw, J., concurred.
Hearing in Bank denied.